In re Search of All Electronically Stored Information [2017] FMSC 10; 21 FSM R. 192 (Pon. 2017) (3 March 2017)

FSM SUPREME COURT TRIAL DIVISION

SEARCH WARRANT NO. 2017-705

IN THE MATTER OF THE SEARCH OF: )
All electronically stored information within a )
)
1) Black and silver color cell phone S6 )
Samsung; SN-RF8G60HZ8PW; IMEI- )
359030063690287/01; and )
2) Black Toshiba laptop; SN-9F55150P. )
_____________________________________________ )

ORDER DENYING APPLICATION FOR A SEARCH WARRANT

Dennis K. Yamase
Chief Justice

Decided: March 3, 2017

APPEARANCE:

For the Government: Minh Nguyen, Esq.
Assistant Attorney General
FSM Department of Justice
P.O. Box PS-105
Palikir, Pohnpei FM 96941

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HEADNOTES

Search and Seizure Warrants
Since a warrant may not issue except on probable cause, supported by affidavit particularly describing the place to be searched and the persons or things to be seized, a judicial officer must issue a warrant identifying the property or persons to be seized and naming or describing the person or place to be searched. In re Search of All Electronically Stored Information, 21 FSM R. 192, 193 (Pon. 2017).

Search and Seizure Warrants
A warrant cannot stand if it is too broad or vague. The warrant must be particularly specific in designating the place to be searched or the things to be seized. In re Search of All Electronically Stored Information, 21 FSM R. 192, 193 (Pon. 2017).

Search and Seizure Warrants
To avoid turning a limited search for particular information into a general search of electronic databases, the courts have established special particularity requirements for searching electronic databases. In re Search of All Electronically Stored Information, 21 FSM R. 192, 193-94 (Pon. 2017).

Search and Seizure Warrants
Although on rare occasions, the police may have reason to believe that all of the digital information in a particular device contains evidence of a crime, judges must be vigilant in observing the FSM Constitution’s particularity requirement. In re Search of All Electronically Stored Information, 21 FSM R. 192, 194 (Pon. 2017).

Search and Seizure Warrants
When, due to the lack of particularity required by the FSM Constitution, the court is not satisfied that the search warrant application and affidavit are sufficient to grant a warrant for electronically stored information, the application will be denied. The court must tread carefully because the law in this area is still developing and expanding dramatically as the digital age matures. In re Search of All Electronically Stored Information, 21 FSM R. 192, 194 (Pon. 2017).

Search and Seizure Warrants
A search warrant application may be resubmitted in order to conform to the customary practice and constitutional limitations for electronic searches. In re Search of All Electronically Stored Information, 21 FSM R. 192, 194 (Pon. 2017).

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COURT’S OPINION

DENNIS K. YAMASE, Chief Justice:

Pursuant to Rule 41 of the FSM Rules of Criminal Procedure, Minh Nguyen, FSM Assistant Attorney General, filed an Application for a Search Warrant on March 3, 2017. The application is supported by the accompanying sworn Affidavit in Support of Search Warrant submitted by deputized FSM national police officer and investigator Kasner Aldens.

UPON CONSIDERATION, the Court DENIES the Application and supporting affidavit for the reasons set forth below.

The FSM Constitution states

[t]he right of the people to be secure in their persons, houses, papers, and other possessions against unreasonable search, seizure, or invasion of privacy may not be violated. A warrant may not issue except on probable cause, supported by affidavit particularly describing the place to be searched and the persons or things to be seized.

FSM Const. art. IV, § 5. Likewise, Rule 41(c)(1) of the FSM Rules of Criminal Procedure provides that the judicial officer shall issue a warrant identifying the "property or persons to be seized and naming or describing the person or place to be searched." "The Fourth Amendment was intended to make general search warrants impossible."^[1] 3A CHARLES ALAN WRIGHT & SARAH N. WELLING, FEDERAL PRACTICE AND PROCEDURE, § 668, at 92 (4th ed. 2010). "Thus a warrant cannot stand if it is too broad or vague." Id. The warrant must be particularly specific "in designating the place to be searched or the things to be seized." Id.

"To avoid turning a limited search for particular information into a general search of . . . electronic databases," tue courts have established special particularity requirements for searching electronic databases. ^{(quoting United States v. Abrams, 615 F.2d 541, 543 (1st Cir. 1980)).}

The instant Aationa Seaarrans for all electronically stor stored ined information in the specified cellular plar phone hone and laptop without a limitation as to time or content. Although on rare occasions, the police may have reason to believe that all of the digital information in a particular device contains evidence of a crime, judges must be vigilant in observing the particularity requirement under the FSM Constitution. The application herein has not specified what information inside these devices is the target of the warrant nor specified any time limitations on the search.

Lastly, the filing does not contain the usual four draft orders that a judicial officer can sign in order to expedite the search. While this irregularity is not fatal in itself, in conjunction with the lack of particularity as required by the FSM Constitution, the Court is not satisfied that the application and affidavit are sufficient to grant the search warrant for electronically stored information. The Court must tread carefully because the law in this area is still developing and expanding dramatically as the digital age matures.

ACCORDINGLY, the Application for a Search Warrant, filed March 3, 2017, is DENIED for want of proper substance and specificity. The application may be resubmitted according to the customary practice and constitutional limitations for electronic searches.

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[1] The Fourth Amendment to the United States Constitution, on which Article IV, Section 5 of the FSM Constitution was based, states: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

^[2] The court notes that Rule 41 of the U.S. Federal Rules of Criminal Procedure was recently amended in 2009 to add new subsection (e)(2)(B), which covers warrants seeking electronically stored information. The Ninth Circuit delivered an en banc opinion setting out a list of requirements for search warrants for electronic data that same year, which may prove as useful guidance for FSM courts and litigants alike. United States v. Comprehensive Drug Testing, Inc., 579 F.3d 989 (9th Cir. 2009) (en banc).